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Fisher v. United States

United States District Court, Western District of Pennsylvania

February 6, 2015

GERALD LEE FISHER, Plaintiff,
v.
UNITED STATES OF AMERICA Office of the Attorney General, Defendant.

MEMORANDUM ORDER OF COURT RE: DEFENDANT’S MOTION TO DISMISS (DOC. NO. 12).

Arthur J. Schwab, United States District Judge.

A. Introduction

This case centers on pro se Plaintiff’s dissatisfaction as to the handling of a claim submitted by the United States Department of Veterans Affairs. See Amended Complaint, Doc. No. 4. Plaintiff contends that jurisdiction is proper based upon federal question jurisdiction, 28 U.S.C. § 1331, and demands that the Court impose the “No-Answer Default Judgment federal law” for $25 million. Id. The Government was served on November 20, 2014 and was required to answer or otherwise plead on or before January 20, 2015. See Doc. No. 10, Summons/Return of Service. The Government filed a substantive Motion to Dismiss on January 20, 2015. In this Motion, the Government moves this Court to dismiss Plaintiff’s Amended Complaint because Plaintiff’s claims are premised upon his a denial veteran benefits, challenges to which are not reviewable in Federal District Courts.

The Court ordered that Plaintiff file a response to this Motion on or before January 29, 2015, at noon. 01/21/2015 Text Order. On January 21, 2015, Plaintiff filed an affidavit, in which he set forth the following:

1. The amount owed in the Federal Case No. 14-1425 complaint is twenty-five million dollars (25, 00, 000);
2. The defendant is not in the military service; and
3. The defendant is not an infant or incompetent person.

Doc. No. 14.

B. The Government’s Timely Filing of a Motion to Dismiss

On January 27, 2015, Plaintiff filed a letter entitled “JUDGMENT BY DEFAULT.” Doc. No. 15. Plaintiff set forth that pursuant to Federal Rule of Civil Procedure 12(a)(2) or (3) and the Court’s written summons, Defendant is in default because it was required to answer or file an appropriate motion within 60 days of service and failed to do so by January 20, 2015. In this document, Plaintiff notes that he was in receipt of Defendant’s Motion to Dismiss “dated and postmarked via first-class mail on January 20, 2015.” Doc. No. 15, 1. Therefore, according to Plaintiff’s own admissions, the Government’s Motion to Dismiss was filed within the prescribed time period for such a pleading.[1]

After review of this document, the Court extended the time for Plaintiff to file a substantive response to Defendant’s Motion to Dismiss because no filing to date had addressed the merits of the Government’s Motion. 01/28/2015 Text Order. Plaintiff was ordered to file a response on or before February 5, 2015. Id.

On February 4, 2015, Plaintiff filed a letter, dated January 30, 2015, entitled “REBUTTAL.” In it, Plaintiff:

(1) argues that the Court presumptuously assumed that he was moving for default judgment;
(2) moves the Court to produce evidence as to why January 18, 2015 (a Sunday) was not the correct date for Defendant to ...

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